Chapter DWD 290

Chapter DWD 290

CONTRACTS FOR CONSTRUCTION OF PUBLIC WORKS

DWD 290.001   Scope.

DWD 290.01   Definitions.

DWD 290.015   Collecting and compiling wage rate information.

DWD 290.02   Apprentices.

DWD 290.025   Subjourneypersons.

DWD 290.03   Classification of laborers, workers, mechanics and truck drivers.

DWD 290.035   Classification of projects.

DWD 290.04   Straight time wages.

DWD 290.05   Overtime wages.

DWD 290.08   Prevailing wage rate determinations for individual projects.

DWD 290.09   Procedure for requesting exemption from applying for individual project prevailing wage rate determinations.

DWD 290.10   Procedure for an administrative review.

DWD 290.11   Procedure when a covered entity fails to request a required prevailing wage rate determination or incorporate a required prevailing wage rate determination into a contract.

DWD 290.12   Posting of prevailing wage rates.

DWD 290.13   Evidence of compliance by agent and subcontractor.

DWD 290.14   Evidence of compliance by prime contractor.

DWD 290.145   Evidence of compliance by owner or developer of real property.

DWD 290.155   Minimum estimated project costs.

DWD 290.16   Complaints.

DWD 290.17   Standard contract language.

DWD 290.18   Electronic certified payroll records.

DWD 290.19   Application of effective date.

Ch. DWD 290 Note Note: All citations to ss. 66.0903, 66.0904, 103.49 and 103.50, Stats., have been changed to the 2009 edition, which was in effect when ch. DWD 290 was last updated by rulemaking under ch. 227, Stats. These statutes govern projects begun before January 1, 2017. This chapter does not apply to projects begun after January 1, 2017.

Ch. DWD 290 Note Note: 2015 Wisconsin Act 55 made extensive changes to prevailing wage laws. Section 66.0903, Stats., was repealed in large part and amended in remaining part, effective January 1, 2017. Sections 103.49 and 103.50, Stats., were repealed in part and renumbered and amended in part, effective January 1, 2017. The unrepealed portions of ss. 103.49 and 103.50, Stats., were renumbered to be parts of ss. 16.856 and 84.062, Stats., respectively.

Ch. DWD 290 Note Note: 2011 Wisconsin Act 32 included significant changes to prevailing wage laws, ss. 66.0903, 103.49, and 103.50, Stats., and repealed s. 66.0904, Stats., effective July 1, 2011.

Ch. DWD 290 Note Note: Chapter Ind 90 was renumbered chapter ILHR 290 under s. 13.93 (2m) (b) 1., Stats., Register, April, 1996, No. 484. Chapter ILHR 290 was revised by emergency rule effective May 10, 1997. Chapter ILHR 290 was renumbered chapter DWD 290 under s. 13.93 (2m) (b) 1., Stats., and corrections made under s. 13.93 (2m) (b) 6. and 7., Stats., Register, September, 1997, No. 501.

DWD 290.001 DWD 290.001 Scope. This chapter applies to all prevailing wage rate determinations under ss. 66.0903, 66.0904, and 103.49, 2009 Stats., and to the certification of prevailing wage rates and the notification of minor subcontractors under s. 103.50, 2009 Stats.

DWD 290.001 History History: Cr. Register, September, 1997, No. 501, eff. 10-1-97; correction made under s. 13.93 (2m) (b) 7., Stats., Register, July, 2000, No. 535; CR 10-092: am. Register December 2010 No. 660, eff. 1-1-11; correction made under s. 13.92 (4) (b) 7., Stats., Register June 2017 No. 738.

DWD 290.01 DWD 290.01 Definitions. The following definitions shall apply to all prevailing wage rate determinations issued by the department pursuant to this chapter:

DWD 290.01(1) (1) “Allowable rate” means the rate determined by the department from its review of a collective bargaining agreement by subtracting items which do not represent bona fide fringe benefits.

DWD 290.01 Note Note: This term is used in s. DWD 290.015 (3). Two examples of items which do not represent bona fide fringe benefits are industry or contract administration funds.

DWD 290.01(2) (2) “Area” has the same meaning as in ss. 66.0903 (1) (a), 66.0904 (1) (a), 103.49 (1) (a), and 103.50 (1) (a), 2009 Stats.

DWD 290.01 Note Note: Section 66.0903 (1) (a), 2009 Stats., provides that “area” means “the county in which a proposed project of public works that is subject to this section is located or, if the department determines that there is insufficient wage data in that county, “area” means those counties that are contiguous to that county or, if the department determines that there is insufficient wage data in those counties, “area” means those counties that are contiguous to those counties or, if the department determines that there is insufficient wage data in those counties, “area” means the entire state or, if the department is requested to review a determination under sub. (3) (br), “area” means the city, village or town in which a proposed project of public works that is subject to this section is located.” The same definition is provided in s. 66.0904 (1) (a), 2009 Stats., except that the cross-reference relating to the review of a determination is to s. 66.0904 (4) (e), 2009 Stats. The same definition is provided in s. 103.49 (1) (a), 2009 Stats., except that the cross-reference relating to the review of a determination is to s. 103.49 (3) (c), 2009 Stats. The same definition is provided in s. 103.50 (1) (a), 2009 Stats., except that there is no cross-reference relating to the review of a determination.

DWD 290.01(3) (3) “Bona fide economic benefit” has the same meaning as in ss. 66.0903 (1) (am), 66.0904 (1) (am), and 103.49 (1) (am), 2009 Stats.

DWD 290.01 Note Note: Sections 66.0903 (1) (am) and 66.0904 (1) (am), 2009 Stats., both provide that “bona fide economic benefit” has the meaning given in s. 103.49 (1) (am), 2009 Stats. Section 103.49 (1) (am), 2009 Stats., provides that “bona fide economic benefit” means “an economic benefit for which an employer makes irrevocable contributions to a trust or fund created under 29 USC 186(c) or to any other bona fide plan, trust, program or fund no less often than quarterly or, if an employer makes annual contributions to such a bona fide plan, trust, program or fund, for which the employer irrevocably escrows moneys at least quarterly based on the employer’s expected annual contribution.”

DWD 290.01(4) (4) “Contractor” means a person, including but not limited to a sole proprietor, a partnership, a corporation, a limited liability company, a construction manager or consultant, a Wisconsin state agency as defined in s. 103.49 (1) (f), 2009 Stats., or a local governmental unit as defined in s. 66.0903 (1) (d), 2009 Stats., who has entered into a contract with a state agency or local governmental unit for a project of public works, or who has entered into a contract with an owner or developer of real property for a publicly funded private construction project.

DWD 290.01 Note Note: In an Opinion of the Attorney General issued on November 12, 2009, OAG-5-09, the Attorney General states that, effective January 1, 2010, state prevailing wage rates must be paid to the employees of a local governmental unit that enters into an agreement to perform services for another local governmental unit on a project of public works.  Under this rule, the same requirement also applies to any agreement for services entered into before January 1, 2010, and to any work that is claimed to be done pursuant to the joint exercise of powers or duties under s. 66.0301 (2), 2009 Stats., before or after January 1, 2010, when the circumstances show that the work comes under the definition of work done by a “contractor” or “employer.”

DWD 290.01(5) (5) “Department” means the state of Wisconsin department of workforce development.

DWD 290.01(5m) (5m) “Direct financial assistance” has the same meaning as in s. 66.0904 (1) (c), 2009 Stats.

DWD 290.01 Note Note: Section 66.0904 (1) (c), 2009 Stats., provides that “direct financial assistance” means moneys, in the form of a grant or other agreement or included as part of a contract, cooperative agreement, or any other arrangement, including a redevelopment agreement under s. 66.1333 (5), economic development agreement, contract under s. 66.1105 (3), or assistance provided under s. 66.1109, that a local governmental unit directly provides or otherwise directly makes available to assist in the erection, construction, repair, remodeling, demolition, of a private facility. “Direct financial assistance” does not include any of the following:

DWD 290.01 Note 1. A public works contract, a supply procurement contract, a contract of insurance or guaranty, a collective bargaining agreement, or any other contract under which moneys are not directly provided or otherwise directly made available for that assistance.

DWD 290.01 Note 2. Any moneys allocated by the city of Milwaukee for the purchase of public access easements that are located entirely in the Milwaukee Riverwalk Site Plan Review Overlay District established by the city of Milwaukee, as amended to June 1, 2009, or for the construction of dockwalls, walkways, plazas, parks, private roadways open to the public, or similar improvements, or for any other public infrastructure improvements, that are located entirely in that district, if the work on those improvements is subject to s. 66.0903, 2009 Stats., or is exempted from that section under s. 66.0903 (6), 2009 Stats.

DWD 290.01(6) (6) “Employer” means any contractor, subcontractor, agent or other person, including a Wisconsin state agency as defined in s. 103.49 (1) (f), 2009 Stats., or a local governmental unit as defined in s. 66.0903 (1) (d), 2009 Stats., doing or contracting to do all or a part of the work.

DWD 290.01 Note Note: In an Opinion of the Attorney General issued on November 12, 2009, OAG-5-09, the Attorney General states that, effective January 1, 2010, state prevailing wage rates must be paid to the employees of a local governmental unit that enters into an agreement to perform services for another local governmental unit on a project of public works.  Under this rule, the same requirement also applies to any agreement for services entered into before January 1, 2010, and to any work that is claimed to be done pursuant to the joint exercise of powers or duties under s. 66.0301 (2), 2009 Stats., before or after January 1, 2010, when the circumstances show that the work comes under the definition of work done by a “contractor” or “employer.”

DWD 290.01(6m) (6m) “Facility” means all or any portion of a building, a structure, land, infrastructure, or other real property.

DWD 290.01(9) (9) “Hourly basic rate of pay” has the meaning given in s. 103.49 (1) (b), 2009 Stats.

DWD 290.01(10) (10) “Hourly contributions” is the per hour cost of the economic benefits paid to a laborer, worker, mechanic or truck driver by his or her employer, in addition to the hourly basic rate of pay. Payment for food, lodging, mileage, riding time, waiting time, call-in pay, uniforms, and the use of an employer’s vehicle are excluded.

DWD 290.01 Note Note: Specific economic benefits. (Interpretation)

DWD 290.01 Note (a) The term “other bona fide economic benefit” is the so-called “open end” provision. This was included so that new economic benefits may be recognized by the department as they become prevailing. A particular economic benefit need not be recognized beyond a particular area in order for the department to find that it is prevailing in that area.

DWD 290.01 Note (b) To insure against considering or giving credit to any and all economic benefits, some of which might be illusory or not genuine, the qualification required by the department is that the economic benefits must be bona fide. No difficulty is anticipated in determining whether a particular economic benefit is bona fide in the ordinary case where benefits are those common in the construction industry and which are established under a usual fund, plan or program. The following are typical conventional economic benefits: medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, unemployment benefits, life insurance, disability and sickness insurance, or accident insurance, vacation and holiday pay, defrayal of costs of apprenticeship or other similar programs, or other bona fide economic benefits, but only where the employer is not required by other federal, state, or local law to provide any of the benefits. Employers may take credit for contributions made under such conventional plans without requesting the approval of the department.

DWD 290.01 Note (c) Economic benefits which an employer is required to pay pursuant to other federal, state, or local law are excluded. No credit shall be taken for the payments made for these economic benefits. For example, payments for worker’s compensation insurance under either a compulsory or elective state statute are not payments for economic benefits under s. 66.0903 or 103.49, 2009 Stats. The omission in the above-mentioned statutes of any express reference to these payments, which are common in the construction industry, suggests that these payments shall not be regarded as an economic benefit.

DWD 290.01(10)(a) (a) Contribution irrevocably made by an employer to a trustee or to a third person. Contributions for bona fide economic benefits made to a trustee or to a third person irrevocably shall be considered in ascertaining any hourly contribution. The “third person” must be one who is not affiliated with the employer. The trustee must assume the usual fiduciary responsibilities imposed upon trustees by applicable law. The trust or fund, except those used for apprenticeship training, must be set up so that the employer be unable to recapture any of the required contributions paid in or to divert the funds.

DWD 290.01 Note Note: Although contributions made to a trustee or third person pursuant to a benefit plan must be irrevocably made, this does not prevent return to the employer of sums which were paid in excess of the contributions actually called for by the plan, as where such excess payments result from error or from the necessity of making payments to cover the estimated cost of contributions at a time when the exact amount of the necessary contributions under the plan is not yet ascertained. For example, a benefit plan may provide for definite insurance benefits for employees in the event of the happening of a specified contingency such as death, sickness, accident, etc., and may provide that the cost of such definite benefits, either in full or any balance in excess of specified employee contributions, will be borne by the employer. In such case the return by the insurance company to the employer of sums paid in excess of the amount required to provide the benefits which, under the plan, are to be provided through contributions by the employer, will not be deemed a recapture or diversion by the employer of contribution made pursuant to the plan.

DWD 290.01(10)(b) (b) Fund, plan or program. The contribution for an economic benefit must be made pursuant to a bona fide fund, plan, or program.

DWD 290.01 Note Note: The phrase “fund, plan, or program” is intended merely to recognize the various types of arrangements commonly used to provide economic benefits through employer contributions. In interpreting this phrase, the department will be guided by the experience of the United States department of labor and United States treasury department in administering the Employee Retirement Income Security Act of 1974, of the U.S. department of labor in administering other related programs, and of the Wisconsin state insurance commissioner in administering employee welfare funds under ch. 641, Stats.

DWD 290.01 Note Note: Chapter 641, Stats., was repealed by 2003 Wis. Act 261.

DWD 290.01(10)(c) (c) Unfunded plans.

DWD 290.01(10)(c)1. 1. The reasonable anticipated cost to an employer pursuant to an enforceable written commitment to carry out a financially responsible plan or program shall be considered as an economic benefit.

DWD 290.01 Note Note: These provisions are intended to permit the consideration of economic benefits that meet the requirements and are provided from the general assets of an employer.

DWD 290.01(10)(c)2. 2. No type of economic benefit is eligible for consideration as a so-called unfunded plan unless all of the following criteria apply:

DWD 290.01(10)(c)2.a. a. A copy has been supplied to the department.

DWD 290.01(10)(c)2.b. b. It could be reasonably anticipated to provide economic benefits described in s. 66.0903 or 103.49, 2009 Stats., and this subsection.

DWD 290.01(10)(c)2.c. c. It is a bona fide commitment.

DWD 290.01(10)(c)2.d. d. The plan or program providing the economic benefits has been communicated in writing to the affected laborers, workers, mechanics and truck drivers.

DWD 290.01 Note Note: As in the case of fringe benefit contributions made to a fund, plan, or program, an unfunded plan or program must be “bona fide” and not a mere simulation or sham to avoid compliance with s. 66.0903 or 103.49, 2009 Stats. In evaluating the per hour cost of the fringe benefit contribution for employers that “self-insure” all or a portion of their employees’ health insurance, the department may use guidance from the discussion on determining the applicable premium for self-insured plans under the Consolidated Omnibus Reconciliation Act (COBRA) in the Employer’s Handbook: Mandated Health Benefits, Thompson Publishing Group, 1725 K Street, N.W., Suite 200, Washington, D.C. 20006.